Custody and Visitation (Parental Rights and Responsibilities)
What is Custody?
There's No Court Order About My Child. Who Has
Custody (Physical and Legal Responsibility)?
I'm Getting Divorced or Separated or
There's a Parentage Case. What Happens with Custody?
What Is Visitation?
It's a Crime Not to Bring a Child
Back After a Visit
Visitation and Child Support
My Ex and I are Separating or Divorcing.
Who Decides Who Has Physical and Legal responsibility for Our Children?
Final Orders and Temporary Orders
Abuse and Custody
What is Custody?
Vermont Family Court calls "custody" and "visitation" "parental rights
and responsibilities."
There are three parts of parental rights and responsibilities: physical responsibility,
legal responsibility, and child support.
Physical Responsibility
Physical responsibility is where your child lives. The person who
has physical responsibility takes care of the child's day-to-day needs.
Legal Responsibility
Legal responsibility is who has the right to make major decisions
about the child's life. What are "major decisions"? Here are some
examples of major decisions:
- where your child goes to school;
- what religion your child practices;
- which doctor your child goes to; and
- if your child can travel outside of Vermont.
Child Support
Parents have a responsibility to support their children as best as
they can. Do you have children? Did you break up with the other
parent of your child? Both you and your ex still must support your
children.
There's No Court Order About My Child. Who Has
Custody (Physical and Legal Responsibility)?
It depends on your situation. We list some common situations below.
I'm Not Married to the Father of My Child
Is there a court order about custody? If there isn't a court order,
only the mother has legal and physical responsibility. This is called
"sole" physical and legal responsibility or sole custody. The father
can get legal and physical responsibility. He needs to file a
parentage action in Family Court.
What if there is a court order about custody? The court order says
who has custody.
I'm Married to My Child's Other Parent
Is there a court order about custody? If there isn't a court order,
the parents share physical and legal responsibility. This is called
"joint" physical and legal responsibility or joint custody.
What if there is a court order about custody? The court order says
who has custody.
I'm Getting Divorced or Separated or There's a
Parentage Case. What Happens with Custody?
The Court will issue a court order about parental rights and
responsibilities. The order will say who your child or children will
live with. It will also say who has legal responsibility for your
child or children. And it will when and where your child or children
will see the parent that they don't live with. Parents can agree to
share legal or physical responsibility. Or the Court can order that
only one parent will have legal and physical responsibility. The
court can't order the parents to share physical or legal responsibility
if they don't agree. Next we give an example of what could happen for a
family.
Example
Susan and John are getting divorced. They have one daughter named Emily and one
son named Joseph. What will happen with the children? Here are some different things
the court could order about Emily and Joseph.
The Court could order that John has sole physical and legal responsibility for both
children. This means that Emily and Joseph will live with John. John will make all of
the decisions about Emily and Joseph.
Or John and Susan could make an agreement about Emily and Joseph. Susan and
John could agree that Susan will have physical responsibility. And they will share
legal responsibility. They will also agree to a regular visitation schedule. This means
that Emily and Joseph will live with Susan. John and Susan will make major decisions
about Emily and Joseph together. John will get to see the children on a regular
visitation schedule. Susan and John will put the visitation agreement in their
agreement about parental rights and responsibilities. Their agreement will become
a court order.
What If I'm in a Parentage Case Instead of a Divorce?
Did the father of your child or children prove that he is the biological
father? Then it will work the same as in a divorce. The parents can agree
about physical and legal responsibilities. Or the court will order one
parent to have physical and legal responsibilities.
What if nobody has been proved to be the father of my child or children?
You have sole physical and legal responsibility. Learn more at
What is Custody? and Who Has Custody (Physical and Legal Responsibility)
of My Child? above.
What Is Visitation?
Visitation is when your child sees the parent that she doesn't live
with. Vermont Family Court calls visitation "parent child contact."
If a court orders that one parent has sole physical responsibility
(custody) of a child, the court will order visitation. The court
order says when visitation happens. The court wants your child to
have as much contact as possible with both of her parents unless your
child will be harmed by contact with her other parent. Has the other
parent harmed your child or children? Then the court may limit or
deny visitation. But it's unusual for the court to limit visitation.
The Court may limit or deny visitation altogether if the visiting
parent is convicted of certain sex crimes or kidnapping.
It's a Crime Not to Bring a Child
Back After a Visit
Parents have to follow the visitation schedule. If you keep your
child away from the parent who has custody, it is a crime. The
crime is called "custodial interference." This is a felony with a
maximum sentence of 5 years in jail. It's also a crime for another
relative to keep the child away from the parent who has custody.
What if I was afraid for my child's safety? There is a defense to
custodial interference. You can refuse a visit if you believe in good
faith that you need to protect your child from immediate physical harm.
You can't leave Vermont with your child to protect him or her. You must
file a motion in court within 72 hours. The motion must describe the
imminent danger that you were protecting your child from.
Visitation and Child Support
Visitation rights and child support are not related at all. They have
nothing to do with each other.
Do you have custody? Is there a visitation order? You have to follow
the visitation order. What if your ex refuses to pay child support?
You can't refuse visitation. What can I do if my ex isn't paying
child support? File a motion in court. Ask the Court to make your ex
follow the child support order. You can also get help from Vermont Office of Child Support.
Have you been ordered to pay child support? You have to pay the child
support. What if your ex has custody and won't let you see your child?
You still must pay child support. What can you do if the custodial
parent isn't letting you see your child? File a motion in court.
Ask the Court to make your ex follow the visitation order.
My Ex and I are Separating or Divorcing. Who Decides
Who Has Physical and Legal Responsibility for Our Children?
What If My Ex and I Agree What Should Happen with Our Children?
Do you and your ex agree about what should happen with your child or
children? Do you agree who will have physical and legal responsibility?
Do you agree about visitation? The court will probably make your
agreement be the court order. But the judge has to agree that your
plan is good for your child or children.
What If My Ex and I Don't Agree?
What if you and your ex can't agree about what should happen with your child or children?
The court will decide who gets physical and legal responsibilities. This happens at a
"contested hearing." A contested hearing is a trial in front of a judge. You will have
to present evidence to the court about why you should get custody. The evidence
is usually testimony from parents, teachers, doctors, and other people who
know your child, you, and your ex. The court considers certain factors
to make its decision. The most important factor is what the court
believes will be best for your child. This is called the "best interests" of your child.
"Best interests" is what the judge believes the law and the facts say would be the best for
your child. Do you want to learn more about "best interests"? Go to our
Best Interests of the Child page.
The court can't order you to share physical responsibility with your
ex. You and your ex have to agree if you want to have share physical
responsibility.
Most people believe it's best for children if parents agree about
custody. What if you and your ex can't agree? The court will decide
for you. The court will make an order about custody and visitation.
The court will make the order based on what the judge believes is in your
child's "best interests."
The court may order you to take part in a Family Court program. These
programs are designed to help parents, or the court, decide about the
children. These are some of the court programs the court could order:
- mediation,
- home study,
- parent coordination,
- children's panel,
- visitation masters, and
- forensic evaluation.
Read more about parental rights and responsibilities on the
Court's website.
Final Orders and Temporary Orders
At the end of the divorce, separation or parentage case there will be a
Final Order about physical and legal responsibility (custody). It's
very difficult to change the Final Order later. What if you want to change
the Final Order later? You have to file a motion in court. You have to
prove to the court that there has been a "substantial and unanticipated"
change. This means you have to show that something important has
changed. And you also have to show that the thing that changed is
something you didn't expect to happen.
Often the court issues a Temporary Order about custody at the
beginning of the case. The Temporary Order is only in place until there is a
Final Order. The parents can agree about what the Temporary Order will say
about their children. Do you and your ex agree where your child or
children should live until the Final Order? You can write an agreed
order or tell the judge what you want. What if you and your ex can't
agree? You should file a motion with the court asking the court to
decide who has custody until the Final Order.
Abuse and Custody
Partner Abuse
Has the other parent of your child physically or emotionally abused you?
Then you aren't in a good position to work out an agreement about
custody. Abuse victims are often intimidated by their abuser.
Victims sometimes agree to an order that isn't in their child's best
interest because they are afraid. Have you been abused? You should get
an attorney to help you with your case if you can.
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Has your ex abused you or your child?
You may be able to get free legal help.
Call Vermont Legal Aid at (800) 889-2047.
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Child Abuse
Did your ex abuse your child? You need to tell the court about the
child abuse so the court can issue orders that protect your child from
more abuse.
Children suffer emotionally when their parent is abused. Even if the
child doesn't directly witness the abuse, the child can be emotionally
harmed. When a parent abuses another parent, it's very likely that the abuser
will also abuse the child.
Vermont Law Help, 2008.
This is a website about Vermont law. We give this information
as a public service. It is not legal advice. We are not acting as your
lawyer.
Always consult a lawyer, if you can, before taking legal action.
